4th Amendment Flow Chart

Thursday, October 6, 2022 12:36 PM

Was there a search?

1. Pro
2. Wh
3. The
4. Ste
obs

Reasonable expectation of privacy? No Curtilage of Home?

Test:
1) Actual (subjective) expectation of privacy
2) That the expectation be one that society is No Yes
prepared to recognize as reasonable
No

Sense Enhancing Tech?

Physical Trespass?
Was it (1) not available to the
public + (2) obtained info that
could not have been found
Yes w/out entering home

No
Third Party Doctrine?
(i.e. bank records)

Yes

No/NA

No
Then no search!
oximity of the area to the home
hether the area is an enclosure near the home
e nature of the uses of the area
eps taken to protect the area from outside
servation

Against implicit license?

(i.e. drug sniffing dog on

front porch)

Yes
 No/NA

No
Then no search!

Yes, a search!

No

Was there consent?

1. Must be
voluntary Exigent Circumstances? Incident to arrest?
2. Does not have 1. Emergency Aid 1. On their person
to be 2. Hot Pursuit 2. In a container on
knowingly 3. Prevent the Imminent (NOT cell phone)
destruction of evidence 3. In their control
4. Passenger compa
a. When passe
unsecured a
reaching dis
Yes No Yes No passenger c
at the time
b. OR if it's rea
By owner of believe evid
property/defendant? to crime of
Was it a police created be found in
exigency? (NOTE: if the police *Note: Pretextual stops
had probable cause to search
anyways, then it doesn't matter
No

Did the 3rd party:

1. Have common Yes
authority over
premises
 Yes

Was there a search warrant?

Yes Was the warrant:
1. Backed by probable cau
(based on totality of the
circumstances for
In an automobile? informants:
veracity/reliability and b
of knowledge)
2. Specific
their person 3. Administered by a neutr
NO detached judicial officer
Yes
artment of car
enger is
and within
Probable Cause?
stance of the
compartment Yes
No
of the search No
asonable to
Yes
dence relevant
arrest might
If there was a no-knock search, w
n vehicle
allowed (exceptions on case by ca
s don't matter

In container?
Was the vehicle *Note: no longer need
(1) readily probable cause to No Yes/NA
No mobile AND (2) search container within
expectation of // whole car to search
privacy less? without warrant
UNLESS locked (?)
use
e

basis

ral,
r

was it
ase basis)
 Did the 3rd party:
1. Have common Yes
authority over
premises
2. AND give permission No/Not enough
when nonconsenting Yes
person was absent

No

IF no authority,
If defendant
were the police
was physically
reasonable in
present and
believing that the
denied consent,
person had
authority? then invalid

No
Yes

Occurs when some mean

Was there a seizure during the search? individual's possessory in
(note: if original owner g

Yes No

Was there a warrant?

 (1) readily probable cause to No Yes/NA
No mobile AND (2) search container within
expectation of // whole car to search
privacy less? without warrant
UNLESS locked (?)

NO Yes
Yes
NO

Valid Search
Elements of Valid Terry Stop:
1. Seizure (stop)
a. Reasonable suspicion
(can't just be a hunch) to
believe that
b. Criminal activity is afoot
2. Search (frisk)
a. Reasonable suspicion to
believe that the individual
ningful interference with an is
nterests in that property b. Armed
gives permission, then ok!) c. AND (presently)
dangerous
3. Officer may check outer
clothing of person for weapons
 Yes No

Was there a warrant?

No Did this fall under the Plain View & Touch Doctrin
1. Incident to a lawful search
2. Item is in plain view
3. Immediately apparent that the item is
contraband or fruit of a crime
4. Supported by probable cause to believe an
is contraband before seizing it
5. Allows for the seizure of the item
*Does NOT have to be inadvertent
Yes

Yes
No
Invalid S

Valid Seizure

Remedy if invalid search and/or seizure: exclude evidence via Weeks for federal law
Mapp & Wolf for state/local actors
 dangerous
3. Officer may check outer
clothing of person for weapons

A little about arrest warrants:

• Must show probable cause that
subject of warrant as committed an
ne?
offense
• Can make warrantless arrest in public
w/ probable cause
• BUT cannot do so^ in the home
n item

Seizure

enforcement, and